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‘Don’t Ask, Don’t Tell’ is dead

Calif. court ruling means gays can serve openly

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DADT training

DADT training at Quantico, VA. (Blade photo by Michael Key)

A federal appellate court in California on Wednesday overturned a stay on an injunction that had barred the U.S. government from enforcing “Don’t Ask, Don’t Tell,” allowing gay service members to start serving openly in the armed forces.

In the case of Log Cabin Republicans v. United States, a three-judge panel of the U.S. Ninth Circuit Court of Appeals granted the plaintiffs’ request to lift the stay of the injunction that was put in place last year by a U.S. district judge.

“Appellee/cross-appellant’s motion to lift this court’s November 1, 2010, order granting a stay of the district court’s judgment pending appeal is granted,” the decision states.

The decision to lift the stay on the “Don’t Ask, Don’t Tell” injunction comes from a three-judge panel within the Ninth Circuit made up of Chief Judge Alex Kozinski and Circuit Judges Kim Wardlow and Richard Paez.

After ruling in September that “Don’t Ask, Don’t Tell” was unconstitutional, U.S. District Judge Virginia Phillips put an injunction in place to halt the enforcement of the military’s gay ban. The injunction lasted for eight days until the Ninth Circuit placed a stay on the order upon request from the Justice Department, making gays once again unable to serve openly in the military.

The ruling on Wednesday reverses this decision and once again allows for open service. The Ninth Circuit must still decide on the constitutionality of “Don’t Ask, Don’t Tell,” but until it does, the anti-gay law will no longer be enforced.

Cynthia Smith, a Defense Department spokesperson, said the Pentagon is studying the decision with the Justice Department, but will comply with the court order and take “immediate steps to inform the field of this order.”

“In the meantime, implementation of the [‘Don’t Ask, Don’t Tell’] repeal voted by the Congress and signed into law by the president last December is proceeding smoothly, is well underway, and certification is just weeks away,” Smith added.

The panel’s decision, dated July 6, notes that the U.S. government never asserted “Don’t Ask, Don’t Tell” was constitutional in briefs seeking to uphold the statute. Further, the appellate court notes U.S. Attorney General Eric Holder’s announcement in February that the Obama administration determined that the Defense of Marriage Act — and laws related to sexual orientation — are unconstitutional.

“Appellants/cross-appellees state that the process of repealing [‘Don’t Ask, Don’t Tell’] is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer,” the decision states. “The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay.”

R. Clarke Cooper, executive director of the Log Cabin Republicans (Washington Blade photo by Michael Key)

R. Clarke Cooper, executive director of Log Cabin Republicans, which brought the case to court, said the Ninth Circuit’s decision to lift the stay “removes all uncertainty” for gay service members who are “no longer under threat of discharge as the repeal implementation process goes forward.”

“As a captain in the United States Army Reserve, I have observed the reactions of my colleagues to the Department of Defense’s move toward open service, and can say with complete confidence that our military is ready, willing and able to take this step,” Cooper said. “Log Cabin Republicans are proud of our role in ending this unconstitutional and un-American policy once and for all.”

Alex Nicholson, executive director of Servicemembers United and the sole military veteran plaintiff in the lawsuit, praised the decision for bringing about an end to “Don’t Ask, Don’t Tell” at a time when certification is still outstanding to end the military’s gay ban legislatively.

“With the wait for certification dragging out beyond a reasonable time frame, the court has once again stepped in to require the Pentagon to stop enforcing ‘Don’t Ask, Don’t Tell,’ and this time it very well may be for good,” Nicholson said. “I am proud to have worked personally worked with Log Cabin on this case for more than five years now and to have represented the gay military community as the sole named veteran on this lawsuit. Despite the criticisms and years of waiting, this case has yet again successfully eviscerated this outdated, harmful, and discriminatory law.”

Under the repeal law signed in December, “Don’t Ask, Don’t Tell” won’t be off the books until 60 days pass after the president, the defense secretary and the chair of the Joint Chiefs of Staff certify the military for open service. Although training throughout the military has been underway since February, certification has yet to take place.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said the lifting of the stay is “most welcomed” and could have been avoided if the president and defense leaders had certified repeal at an earlier time.

Aubrey Sarvis, executive director of SLDN (Washington Blade file photo by Michael Key)

“It’s the hope of Servicemembers Legal Defense Network that this favorable ruling will not be challenged by the Defense Department,” Sarvis said. “In fact, this whole matter could have been avoided had we had certification back in the spring. It’s time to get on with that important certification, end the confusion for all service members, and put a final end to this misguided policy.”

Dan Woods, an attorney with White & Case LLC who’s handling the case for Log Cabin, said the Justice Department can appeal the lifting of the stay to either the full Ninth Circuit or the Supreme Court.

“I have no idea what the government’s going to do,” Woods said. “And really they shouldn’t have appealed in the first place and they shouldn’t take this any further. They just should acknowledge, once and for all, that ‘Don’t Ask, Don’t Tell’ is dead.”

A White House spokesperson deferred comment on the Ninth Circuit decision to the Justice Department and the Pentagon.

Woods warned gay service members not to come out until the government makes an announcement and whether or not it plans to appeal the decision to lift the stay on the injunction.

“I’m urging people to sort of wait and see what the government does before people come out, but people should stayed tuned and see what the government’s next move is and maybe people will be free to serve openly in the armed forces very soon,” Woods said.

In addition to lifting the stay, the appellate court also grants the plaintiff’s request to expedite oral arguments in the case and states the case should be calendared for the week of Aug. 29.

Woods said the continued oral arguments — even with the injunction in place — are necessary because the litigation in the Log Cabin lawsuit is still ongoing.

“The only thing that’s really been decided is that the stay of the injunction,” Woods said. “The government is still arguing in its appeal that the injunction. It’s arguing that Log Cabin doesn’t have standing to bring the case and things like that, and we wanted to put these issues to bed once and for all and so we asked the court for an expedited hearing on all these other issues.”

NOTE: This post has been updated.

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The White House

Biden administration uses IDAHOBiT to highlight LGBTQ rights support

WHO on May 17, 1990, declassified homosexuality as mental disorder

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(Washington Blade photo by Michael Key)

The Biden administration on Tuesday publicly acknowledged the International Day Against Homophobia, Biphobia and Transphobia.

“Jill and I stand in support and solidarity with lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI+) people in the United States and around the world,” said President Biden in a statement the White House released. “We join with Americans across the country to reaffirm our commitment to the ongoing work of upholding human dignity for all people and advancing equality globally.”

Biden in his statement noted there “has been much progress” since the World Health Organization on May 17, 1990, declassified homosexuality as a mental disorder. Biden also highlighted “we continue to witness disturbing setbacks and rising hate and violence targeting LGBTQI+ people in the United States and around the world.”

“This is wrong,” he said. “LGBTQI+ people are entitled to all the rights, opportunities, and protections that belong to every human on this planet. LGBTQI+ people are an essential part of families and communities—teachers, first responders, public officials, doctors, lawyers, front-line workers and friends who enrich and strengthen every single country.” 

“And make no mistake: Hateful legislative attacks against members of our own LGBTQI+ community cannot be tolerated in America or anywhere else,” added Biden. “They spur discrimination and can stoke violence. And they are rooted in the same ignorance and intolerance that we see around the world. Hate is hate—and all of us have a responsibility to speak out against hate wherever we find it.”

Secretary of State Antony Blinken on Tuesday issued his own IDAHOBiT statement.

“The United States affirms today, on the International Day Against Homophobia, Biphobia, Interphobia and Transphobia (IDAHOBIT), that the human rights of lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI+) persons are the same human rights to which all persons are entitled,” said Blinken. “As enshrined in Article 1 of the Universal Declaration of Human Rights, ‘[a]ll human beings are born free and equal in dignity and rights.’”

Bliken further noted that “too many LGBTQI+ persons live under the shadow of discrimination, violence and fear.”

“Global data makes clear that the dehumanization of LGBTQI+ persons is systemic, pervasive, and often violent,” he said. “Homophobia, biphobia, interphobia and transphobia are deeply entrenched in societies across the world, including here in the United States. Countless persons are at extreme risk for being themselves.”

Biden shortly after he took office in 2021 issued a memorandum that committed the U.S. to promoting LGBTQ rights abroad.

The administration last June appointed Jessica Stern as the special U.S. envoy for the promotion of LGBTQ rights abroad.

The U.S. Senate earlier this year in a bipartisan vote confirmed Chantale Wong, the U.S. director of the Asian Development Bank, as the first openly lesbian American ambassador. The State Department on April 11 began to issue passports with “X” gender markers.

The State Department on April 28 released a report that details the federal government’s implementation of Biden’s foreign policy memo.

“We remain committed to ending this intolerance. Everyone deserves to live with respect, dignity, and safety,” said Blinken in his IDAHOBiT statement. “The United States affirms that all LGBTQI+ individuals, couples, and their families are valid and valuable.”

Biden in his statement also referred to the report.

“By openly reporting on our own progress, the United States hopes to inspire other governments to take similar action to address the needs of their LGBTQI+ communities,” he said.

“To the LGBTQI+ community, my administration sees you,” added Biden. “We stand with you. And we will continue to defend human rights and dignity, at home and around the world.”

Spanish Prime Minister Pedro Sánchez, Cuban President Miguel Díaz-Canel and Council of Europe Human Rights Commissioner Dunja Mijatović are among the other world leaders who have publicly acknowledged IDAHOBiT.

Victor Madrigal-Borloz, the independent U.N. expert on LGBTQ rights, and other U.N. human rights experts in a statement they released on Monday highlighted the plight of LGBTQ people who have been forcibly displaced from their homes.

“With the number of forcibly displaced persons continuing to rise, States, businesses and humanitarian and civil society organizations must invest in developing human rights-based policies and programs that take into full account the intersectional dimensions of forced displacement and sexual orientation and gender identity, fostering stronger collaboration and coordination among all actors responsible for the protection of displaced LGBT individuals,” reads the statement.

Advocacy groups around the world also commemorated IDAHOBiT.

“Today I want to thank my incredible team of Insight public organization who still works for LGBTQI+ people in Ukraine, saving life’s (sic) of our community during the war,” tweeted Olena Shevchenko, chair of Insight, a Ukrainian LGBTQ rights group. “We are here for equality.”

Sexual Minorities Uganda in a tweet said IDAHOBiT “is a significant day for the LGBTIQ+ community because it serves as a reminder of the ongoing violence and prejudice that our communities face.”

“The struggle for equality still continues,” added SMUG.

Pride House Tokyo in Japan also acknowledged IDAHOBiT.

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The White House

WNBA players back petition for White House to ‘prioritize’ Brittney Griner’s release

Phoenix Mercury center detained in Russia in February

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Russian state TV has released a photo of WNBA star Brittney Griner, who was arrested on drug charges in the country after Russian officials say cannabis oil was found in her luggage. (Screenshot)

The Women’s National Basketball Players Association has endorsed a petition that urges the Biden administration to “prioritize” WNBA star Brittney Griner’s release.

“It is imperative that the U.S. government immediately address this human rights issue and do whatever is necessary to return Brittney home quickly and safely,” reads the Change.org petition that Tamryn Spruill, a freelance journalist and author, created.

“The WNBPA and its members proudly join Tamryn Spruill, the creator of this petition, in demanding that lawmakers prioritize Griner’s return,” it continues. “White House and Biden adminsitration, we ask that you take action today—doing whatever is necessary—to bring Brittney Griner home swiftly and safely.”

More than 135,000 people have signed the petition.

Spruill on Saturday in a tweet said the WNBPA, a union that represents WNBA players, partnered with them and Change.org “in demanding that our elected officials work urgently to gain BG’s swift and safe release.”

Griner — a center for the Phoenix Mercury and a two-time Olympic gold medalist who is a lesbian and married to her wife — was taken into custody at Moscow’s Sheremetyevo Airport in February. Russian officials said customs inspectors found hashish oil in her luggage.

The State Department earlier this month determined Russia “wrongfully detained” Griner. A Russian court on Friday extended her detention for another month.

“The Russian system wrongfully detained Ms. Griner,” then-White House Press Secretary Jen Psaki told reporters on Friday during her last White House briefing. “We take our responsibility to assist U.S. citizens seriously.  And we will continue to press for fair and transparent treatment for all U.S. citizens when they are subject to legal processes overseas.”
 
“Now, because the State Department recategorized her as wrongfully detained, it means that our Special Presidential Envoy for Hostage Affairs — it’s quite a title but a well-deserved one — is going to be overseeing this case and leading the effort,” added Psaki. “Because it’s a deliberative process and we know from experience of bringing other Americans home, we’re just not going to detail what those efforts look like at this point in time.”

Griner faces up to 10 years in prison.

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Wyoming

GOP Sen. Cynthia Lummis issues ‘apology’ after transphobic comments during graduation speech

“My reference to the existence of two sexes was intended to highlight the times- times in which the metric of biological sex is under debate”

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Screenshot/University of Wyoming YouTube

During her speech delivered to the University of Wyoming’s College of Arts and Sciences and the College of Education commencement Saturday afternoon, Republican U.S. Senator Cynthia Lummis told graduates that “the existence of two sexes, male and female” was a “fundamental scientific truth.” 

The audience’s immediate reaction to her transphobic remarks were loud expressions of disapproval including jeering, boos, and demands she leave the podium.

The senator’s remarks came in the latter third of her twenty-minute address which had primarily focused on the critical need for teachers and in the fields of agriculture and other endeavors she noted were Wyoming hallmarks.

In a statement released by her office Sunday, a spokesperson noted that Lummis was apologizing to those who felt “un-welcomed or disrespected” by the comments.

“My reference to the existence of two sexes was intended to highlight the times in which we find ourselves, times in which the metric of biological sex is under debate with potential implications for the shared Wyoming value of equality,” the statement read.

“I share the fundamental belief that women and men are equal, but also acknowledge that there are biological differences and circumstances in which these differences need to be recognized. That being said, it was never my intention to make anyone feel un-welcomed or disrespected, and for that I apologize. I have appreciated hearing from members of the University of Wyoming community on this issue, and I look forward to continuing this dialogue.” 

An Assistant Professor in the University of Wyoming’s Sociology Program in the College of Arts and Sciences tweeted pointing out the graduate’s reactions along with the fact that the UW campus community had recently lost a Trans student to suicide, making the senator’s remarks more hurtful.

The university’s president also issued a statement Sunday expressing support for all members of the UW campus and community:

May 15, 2022

To the UW community:

On Saturday, the university celebrated spring 2022 commencement with a series of events that showcased the best of what makes us special: our students, our staff, our faculty and our ability to openly embrace and debate complex issues. One of our speakers made remarks regarding biological sex that many on campus take issue with. While we respect the right of all to express their views, from students to elected officials, we unequivocally state that UW is an institution that supports and celebrates its diverse communities that collectively make us the wonderful place that we are.

Thank you to the many students and families who celebrated with us this weekend. We welcome the incredible individuality and intellect of all our dynamic and diverse students and never want you to feel otherwise.

Sincerely,

Ed Seidel, President

Senator Cynthia Lummis’ remarks are at the 50:11 time mark:

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